Research On The Application Of The "Notice-And-Takedown" Rule For Patent Infringement On E-Commerce Platforms

The " notice-and-takedown " rule was first applied to the field of copyright.After my country’s "Tort Liability Law" was promulgated in December 2009,the application of this rule is no longer limited to the field of copyright,and its scope of application is expanding.However,the provisions of the Tort Liability Law are only provisions in principle.In the face of the rapidly emerging e-commerce platforms,it cannot be applied to the patent infringement of e-commerce platforms.Although the Electronic Commerce Law that came into effect on January 1,2019 detailed the relevant provisions of the Tort Liability Law,it ignored the distinction between copyright,patent rights and trademark rights.The Civil Code,which came into effect on January 1,2021,has no specific provisions on this.In the face of the frequent occurrence of patent infringement cases on e-commerce platforms and the particularity of patent infringement,the “notice-and-takedown” rule serves as An important Internet governance measure.Its application in e-commerce platform patent infringement includes not only the legal reasoning of necessity and feasibility,but also the analysis of the rules when applying e-commerce platform patent infringement.The feasibility study is not to reaffirm the clear stipulation of the “notice-and-takedown”rule in the legislation,but to strengthen the theoretical support for the necessity of the application of the rule in the face of academic disputes.The analysis of the application of the “notice-and-takedown” rule of patent infringement on e-commerce platforms should be analyzed from the internal constituent elements of the respective applicable rules of “notice”and “takedown”.At the same time,it also considers the application of the “notice-andtakedown” rule at the legal level,and seeks a way to coordinate its application with the prelitigation injunction system.For the improvement of the “notice-and-takedown” rule of patent infringement on e-commerce platforms,we must first start with qualified and effective“notices”,improve the subject and content,and conduct malicious “notices” extended from qualified and effective “notices” rules.The second is to identify the tort liability of the ecommerce platform,clarify the legal status and review obligations of the e-commerce platform,and suggest expanding the scope of understanding of necessary measures.Third,consider the coordinated application of the “notice-and-takedown” rule and the pre-litigation injunction system,classify the types of infringement,and determine the order of application of the two according to different types.